COVID-19 and protective measures put in place in response to the pandemic have compelled businesses in countries around the world – including Germany – to adopt a new vision for employment. One such innovation is work from home.

Now, almost a year after the pandemic began, home-office remote work has proven so effective, many analysts contend that it will become a fixture of the post-pandemic future. But remote work raises a host of legal and administrative challenges. This article – based on the 26 January 2021 webinar The Future is Now: The New World of Work in Germany and hosted by employment law experts Paula Wernecke and Inka Müller-Seubert with CMS Germany – explores how homeworking is affecting the traditional office environment, and its implications for both workers and companies.

Remote work in Germany

Remote work has long been recognised in some European countries such the Netherlands, but no specific legal provision for this form of employment existed in Germany before the pandemic, explains Paula Wernecke, a labour expert and Counsel for CMS Germany.

Germany, however, is striving to change this. According to Wernecke, the German government is currently considering the draft Mobile Work Act, which lawmakers are expected to pass shortly.

In addition, in direct response to the pandemic, Germany enacted the SARS-COV-2 Occupational Safety and Health Act, which stipulates employers should offer the option of working from home unless there are 'operational reasons' that make such arrangements impossible.

Although both the draft bill and the new law are laying the legal foundation for remote work in Germany, CMS labour expert Wernecke states that the Safety and Health Act is a temporary measure, which does not enable workers to unilaterally opt to work from home nor does it empower employers to order workers into a remote-working arrangement.

Because remote working in Germany is based on consent between the parties, Wernecke states that companies wishing to implement a work-from-home arrangement should draft appropriate internal policies and include these tenets in each "individual legal agreement, a company agreement or a collective bargaining agreement."

Health and safety obligations

If an agreement is reached, a company's employees can embark on remote work, but a business's obligations do not end here. Employers are obliged to ensure that their remote workers are working in a healthy and safe environment at home, although currently companies have little power to enforce compliance.

Hence, their duties pertain mainly to organisation and communicating information.

Monitoring

Remote work also raises the issue of employee supervision, which a home-working arrangement makes extremely difficult. Because employees also have a legal obligation to keep a record of their daily work activity, employers are faced with the following challenges in regard to supervision:

  • According to EU law, companies must establish a "reliable" system for recording employee working hours, which is a remote-working employee's responsibility and not always easy to achieve in the home environment;
  • Nevertheless, a remote employee should submit regular working-time records to employers, which must inspect them and confirm their authenticity; and
  • Employers must conduct random checks to ensure that remote employees are at work during office hours, although the law does not specify how this should be done.

According to CMS expert Wernecke, remote employees can be best managed through "motivation" by way of "short assessment periods for achieving objectives".

A company's legal responsibilities

The new Occupational Safety and Healthy Act, in force until 15 March 2021, creates the following legal obligations for employers vis-à-vis staff who are now remote working:

  • Companies must offer the option of working from home if the their operations allow for it. If remote work is possible and the employees agree, this decision should be stated in the employment agreement, which should include recognition of health-and-safety requirements for the home office.
  • If operational reasons make remote work impossible, employers must report to the pertinent authority why remote work is not being offered to staff. Furthermore, employers must then take appropriate measures to ensure the safety of the work environment whether it is an office, factory or warehouse.
  • In this situation, work-related meetings of staff are to be reduced to the very minimum. Companies of more than ten workers can form permanent work groups, which should carry out their duties at "staggered times".
  • Employees should be provided with isolated workspaces or required to respect social distancing. If these requirements are not possible, the company should provide personnel with masks.

Upcoming law on mobile working

Germany's COVID-related Health and Safety Act may be temporary, but lawmakers in Berlin are in the process of passing a bill that will permanently establish remote work in the country's post-pandemic future. The main points of the draft legislation are as follows:

  • Employees must request a remote-work arrangement.
  • Once requested, the employer must discuss such an arrangement.
  • If an employer decides to refuse this request, it must inform the employee in writing within two months after the official request was made. If the employer fails to do this, the employee is entitled to conduct remote work for a period of at least six months.
  • If the employer refuses the request by the deadline, the employee must wait four months after receiving an answer before reapplying for remote work.
  • Either employer or employee can terminate a remote-working agreement with three month's notice from the end of a given month. Such unilateral termination is possible at the end of the sixth calendar month since the beginning of the most recent remote-working period. However, the parties can seal alternative arrangements for ending remote work, or terminate by mutual consent.
  • If a remote-working agreement has been terminated, the employee must wait four months from the date of receipt of the decision before applying for the reinstatement of this arrangement.

Rights and obligations in the current environment

Until a law on remote work is passed, the temporary Health and Safety Act regulates work-from-home arrangements. This legislation applies to employees in the following ways:

  • Although employees do not have a legal right to work from home, the act obliges employers to allow their staff to work remotely "as part of their duty of care," explains CMS labour expert Wernecke. In short, if the health of employees may be at risk, adds Wernecke, "it may be necessary to have individual employees or an entire workforce work from home".
  • Although in principle an employee can refuse to work from home, workers who do this "run the risk of losing their right to remuneration, at least temporarily", says Wernecke, adding that in the current pandemic situation, the employer not only has the right to have employees work from home, but in certain cases is obligated to do so.

Managing home-based workers

Companies that have used the temporary act to shift their workforce to their homes are now faced with the question: what is the best way to supervise the work of remote workers?

The simple answer: it's not easy, but managers who inspire their workers with motivation and positive communication, who establish an efficient organisation that includes networking and customer involvement, and base success on strong results rather than micromanagement and constant monitoring, have the best chance of succeeding.

According to CMS Counsel Wernecke, the foundations of effective long-distance management includes:

  • Technology: ensuring that employees have the computers, Wifi access and data-protection systems to get the work done.
  • Work organisation: ensuring that workers understand the job they have to do and the process by which remote work needs to be accomplished.
  • Division of work: ensuring that workers understand their responsibilities vis-à-vis other team members and are in contact with managers if problems arise.
  • Fixed communication dates: ensuring that workers receive instructions to file regular reports on their professional activities by specific deadlines.
  • The last component, but a fundamentally important one, is trust.

"Working from home can only succeed," says Wernecke, "if you have the fundamental trust that the vast majority of employees want to do good work at home".

Advantages of remote work

Almost everywhere, remote work has reduced the risk of infection. But what would be the benefits of remote work in a post-pandemic world? According to research conducted by DAK-Krankenkasse in July 2020, remote work offers the following advantages:

  • Time saved from having to commute to offices and job sites.
  • Time saved from a better allocation of tasks and duties and by eliminating non-productive interactions with co-workers.
  • Increased productivity.
  • The ability to create a more satisfying synergy between an employee's work and family lives.

As for disadvantages, the 2,177 respondents to the study stated:

  • Lack of direct contact with colleagues can also negatively impact efficiency when teamwork is necessary.
  • The quality of an employee's work can suffer in the case of short-term remote working arrangements, suggesting that work-from-home offers the greatest benefits over the long run.
  • Although remote work allows employees to balance professional and office demands, the lack of a clear separation between these worlds can be problematic and disconcerting for many people.
  • Not having direct access to all documents and resources is also a problem.

In addition, work-from-home opportunities have not been distributed evenly among regions, sectors and workers with remote work more prevalent in western Germany than in the east; with men having greater access to remote work than women; with university employees having more access than secondary-school personnel; and with officials topping the list of those working at home ahead of employees.

Staff mobility

According to CMS Senior Associate and labour expert Inka Müller-Seubert, the new world of work promises a variety of visions in the years to come. The many modes and options for work in the future seem to share one constant: staff mobility, the certainty that employees will become more mobile and flexible. The following are some of the innovations that employees and employers of the future may embrace to maximise efficiency and professional satisfaction:

First and foremost, home office: the advantages of this innovation have already been discussed, but according to CMS expert Müller-Seubert, this form of employment could also positively impact the environment.

Scrum teams: which CMS expert Müller-Seubert describes as "autonomous teams that work in a self-determined and self-organised manner", providing the employees on these teams with greater "freedom" and "confidence" in their professional lives.

Matrix organisations: a way of consolidating work processes that Müller-Seubert describes as "a multi-line system with simultaneous organisation of activities and objects" spreading management functions "across two independent dimensions".

Desk sharing: which allows for centralised workplaces to be maintained, but downsized with employees trading time between home and office. States CMS expert Müller-Seubert: "The encouraged exchange and movement are also reflected in creativity and information flow".

Co-working spaces: various forms of offices (e.g. 'open-plan' or 'work bay' configurations) in which employees from different teams or even companies can effectively share the same space.

New health and safety measures

The legislation passed in response to the COVID-19 pandemic has resulted in heightened health and safety regulations, which include updated risk-assessment requirements, infectious-disease specific hygiene protocols, etc.

Companies failing to comply with these updated rules face fines, charges based on administrative offences, sanctions for violating industrial safety and possible criminal prosecution for the serious crime of 'negligent physical injury' if – as a result of their non-compliance – an employee dies or is disabled.

Basically, the occupational safety standards for COVID-19 that must be adopted include:

  • Following the operational measures outlined in the act.
  • Ensuring that employees and visitors to work sites wear masks (i.e. mouth-and-nose coverings).
  • Creating procedures on how to respond when an employee has contracted COVID-19 or is suspected of being infected.
  • Implementing government measures that range from technical safeguards, such as reconfiguring the workplace so that 1.5-metre social distancing can be maintained; and ensuring that sanitary rooms, break rooms and canteen are equipped with disinfectants and cleaners, and designed according to social-distancing requirements. Technical measures also include safety policies for conducting business outside of work premises, creating a safe home-working environment and as much as possible minimising business travel and meetings abroad.

Organisational measures

Other measures mandated by the act include:

  • Ensuring that safe social distancing is practiced on stairways, in elevators; in areas where line-ups or queues may occur, marks should be placed on the floor indicating safe distances between individuals.
  • Ensuring that where possible employees have their own equipment; if this is not possible, company equipment and tools must be cleaned regularly according to strict protocols.
  • Scheduling staggered shifts and break times to avoid clusters of individuals.
  • Minimising the ability of non-employees to access the workplace.
  • Promoting mental health among staff by reducing or eliminating activities or interactions identified as being high stress.

New technology

The workplace of the future will feature and – in the case of remote working – depend on a host of new technological tools that promises to revolutionise how work is carried out. According to CMS labour expert Müller-Seubert, many of these groundbreaking systems include:

Artificial Intelligence (AI): the potential application of algorithms capable of human-like decision-making is limitless, explained Müller-Seubert, because "AI does not base its particular decisions for or against something based on certain prejudices".

Robotics: although robotics is already a mainstay of many industries, Müller-Seubert states that the fusion of AI and robotics will lead to "controlled cooperation of robot electronics and robot mechanics by programming".

Big data analytics: the ability to analyse rafts of data from various sources and "the information gained and patterns identified can optimise business decisions".

Blockchain: these public database chains allow for the protection of information through encryption and access management. But blockchains can also be analysed, revealing important trends and even weaknesses across sectors and industries.

All these systems can be used to redefine both business and work, explained Müller-Seubert, giving birth to new business models, better decision-making, new forms of targeted advertising and a better understanding of the roles of employees and managers in the workplace.